Simpson v CU Boulder Brief of Amici Curiae

    06-1184

UNITED STATE COURT OF APPEALS 
FOR THE TENTH CIRCUIT

LISA SIMPSON AND ANNE 
GIMORE,

Plaintiffs-Appellants, 

-  against -

UNIVERSITY OF COLORADO AT 
BOULDER,

Defendants-Appellees.

Case No.: 06-1184

On Appeal from the United States District Court 
for the District of Colorado

The Honorable Robert E. Blackburn

___ D.C. No. Q2-CV-02390-REE -CBS______________ ___

Brief of American Civil Liberties Union, American Civil Liberties Union of 
Colorado, Asian American Legal Defense and Education Fund, California 
Women’s Law Center, Connecticut Women's Education and Legal Fund, 

Lawyers’ Committee for Civil Rights Under Law, Legal Momentum, 
Mexican American Legal Defense and Educational Fund, National Asian 

Pacific American Women’s Forum, National Association for the 
Advancement of Colored People, NAACP Legal Defense and Educational 

Fund, Inc., National Partnership for Women and Families, Northwest 
Women's Law Center, Sargent Shriver National Center on Poverty Law, 
Southwest Women’s Law Center, and Women’s Law Project as AMICI 

CURIAE in Support of APPELLANTS

—Oral Argument Requested— ______



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Dated: August 24, 2006
Lenora M. Lapidus
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor 
New York, NY 10004

i



TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES......................................................................iv

INTEREST OF AMICI................................................................................. 1

INTRODUCTION....................................................................................... 1

ARGUMENT....................................................  4

I. Appellants’ Evidence Demonstrates That CU 
Had Actual Notice of a Sexually Flostile 
Environment in the Football Program...................................... 4

A. Notice of a hostile environment arose 
from notice of a constellation of factors 
that, taken as a whole, demonstrated a
substantial risk of sexual harassment and assault............. 6

B. Previous sexual assaults in the football 
program provided notice of a substantial
risk to female students........................................................11

1. Identity between the circumstances 
o f prior assaults and the assaults o f
Appellants is not required......................   ..11

2. Notice to a CU law enforcement officer
is relevant notice under Title IX.......... .......................16

3. Allegations need not be proven or
corroborated to constitute notice under Title I X ..... 18

C. Undisputed notice of the assault of 
Appellant Simpson satisfies Title IX’s
notice requirement........................................................... 19

ii



II. Appellants’ Evidence Establishes that 
CU Was Deliberately Indifferent to the 
Existence of a Sexually Hostile Educational 
Environment...............  20

A. CU’s response to harassment in the 
football program prior to December 2001
constituted deliberate indifference....................................21

B. CU’s response to the December 7, 2001,
assaults was deliberately indifferent.................................26

CONCLUSION...........................................................................................30

STATEMENT REGARDING ORAL ARGUMENT.............................. 31

APPENDIX A ................................................................................................I

iii



TABLE OF AUTHORITIES

Page
CASES

Bryant v. Indep. Sch. Dist. No. 1-38 o f Garvin
County, Okla., 334 F.3d 928 (10th Cir. 2003).... ........ ....2, 7, 8, 20

Canty v. Old Rochester Reg 7 Sch. Dist.,
66 F. Supp.2d 114 (D. Mass. 1999)...............................................23

Crandell v. New York Coll, o f Osteopathic Medicine,
87 F. Supp. 2d 304 (S.D.N.Y. 2000)....... .................... ........... .......5

Conner v. Shrader-Bridgeport Intern. Inc.,
227 F.3d 179 (4th Cir. 2000)............ ................... - ................. ■■•■•12

Davis v. Monroe County Bd. ofEduc., 526 U.S. 629 (1999)......4, 5, 7, 20

Doe v. Sch. Admin. Dist. No. 19,
66 F. Supp. 2d 57 (D. Me. 1999)...................................................18

Doe v. Warren Consol. Sch.,
307 F. Supp. 2d 860 (E.D. Mich. 2003)........................................14

Doe A. v. Green, 298 F. Supp. 2d 1025 (D. Nev. 2004)...................18, 19

Ericson v. Syracuse Univ.,
35 F. Supp.2d 326 (S.D.N.Y. 1999)......................... .................. --30

Escue y. No. Oklahoma Coll.,
450 F.3d 1146 (10th Cir. 2006)........................... .................. passim

Farmer v. Brennan, 511 U.S. 825 (1994)............................... . 14, 15

Gant v. Wallingford Bd. o f Educ.,
195 F.3d 134 (2d Cir. 1999)..................................................... 19, 29

Gebser v. Logo Vista Indep. Sch. Dist.,
524 U.S. 274 (1998).................................................................... .passim

iv



Gonzales v. Martinez, 403 F.3d 1179 (10th Cir. 2005)....... 10, 11,15,19

Hicks v. Gates Rubber Co.,
833 F.2d 1406 (10th Cir. 1987)....................................................... 7

Jackson v. Quanex Corp.,
191 F.3d 647 (6th Cir. 1999)........................................................... 6

Johnson v. Galen Health Inst., Inc.,
267 F. Supp. 2d 679 (W.D. Ky. 2003).............................................7

Jones v. Indiana Area Sch. Dist.,
397 F. Supp.2d 628 (W.D. Pa. 2005).............................................23

Massey v. Akron City Bd. o f Educ.,
82 F. Supp. 2d 735 (N.D. Ohio 2000)........... ................. ................ 5

Murrell v. Sch. Dist. No. 1,
186 F.3d 1238 (10th Cir. 1999)................................. .17, 27,28,30

Rosa H. v. San Elizario Ind. Sch. Dist.,
106 F.3d 648 (5th Cir. 1997)...................................................10, 14

Simpson v. Univ. o f Colorado,
372 F. Supp. 2d 1229 (D. Colo. 2005)................................... passim

Smith v. Sheahan, 189 F.3d 529 (7th Cir. 1999)............................. ........12

Tesoriero v. Syosset Central Sch. Dist.,
382 F. Supp. 2d 387 (E.D.N.Y. 2005).............................................8

Theno v. Tonganoxie Unified Sch. Dist. No. 464,
377 F. Supp.2d 952 (D. Kan. 2005)...............................................23

Vance v. Spencer County Pub. Sch. Dist.,
231 F.3d 253 (6th Cir. 2000).......................................10, 17, 22, 23

V



West v. Philadelphia Elec. Co.,
45 F.3d 744 (3d Cir. 1995)................................................................6

Williams v. Bd. o f Regents o f the Univ.
System o f Georgia, 441 F.3d 1287 (11th Cir 2006)........ 13, 19, 28

Wills v. Brown Univ.,
184 F.3d 20 (1st Cir. 1999).... .........................................................23

STATUTES

29U.S.C. § 794.............................................................................................2

42 U.S.C. § 6101 etseq ................................................................................ 2

OTHER AUTHORITIES

Independent Investigative Commission, Final Report
to the University o f Colorado Board o f Regents 13
(May 14, 2004).................................................................................26

VI



INTEREST OF AMICI

Amici are women’s rights and civil rights organizations with a strong interest 

in preventing discrimination in education on the basis of sex or race, whether such 

discrimination occurs at the hands of school officials or peers. Individual 

statements of interest are set out in Appendix A. All parties have consented to the 

filing of this brief.

INTRODUCTION

The decision below threatens to eliminate the protections afforded by Title 

IX and Title VI against peer-on-peer harassment, for the facts of this case, while 

extreme, are unfortunately not unique. A school-sponsored program—here, a 

university football program—maintained an environment in which students were 

repeatedly sexually harassed and assaulted. Upon learning of these incidents, 

school officials did almost nothing, refusing to revise their policies, declining to 

impose meaningful punishment on the perpetrators, and in some instances, 

retaliating against the victims. Yet, the district court concluded that no juiy could 

find the school liable for maintaining a sexually hostile environment. Simpson v. 

Univ. o f Colorado, 372 F. Supp. 2d 1229 (D. Colo. 2005). This ruling contravenes 

established civil rights law, which recognizes that schools deny women and 

minorities equal educational opportunities when they show deliberate indifference 

to known harassment. If affirmed, the decision could insulate schools from

1



liability for peer-on-peer harassment and assaults in a wide range of cases, 

including under Title VI when harassment is based on race or national origin, 

given that Title IX and Title VI are often interpreted analogously.1 See, e.g., 

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998); Bryant v. Indep. 

Sch. Dist. No. 1-38 o f Garvin County, Okla., 334 F.3d 928, 934 (10th Cir. 2003).

If the facts presented by Appellants do not amount to a hostil e environment 

denying equal educational opportunity, it is difficult to imagine facts that would.

In 2001, while students at the University of Colorado (“CU”), Appellant Lisa 

Simpson and Appellant Anne Gilmore were sexually assaulted by CU football 

players and recruits at a recruiting season party.2 Viewed in the light most 

favorable to Appellants (the non-moving parties), the evidence shows that at that 

time school officials knew CU’s football program used alcohol, drugs, and sex to 

maintain a “competitive edge” in recruiting star athletes and knew these practices 

had led to repeated and remarkably similar incidents of sexual harassment, assault, 

and rape by football players and recruits. While CU had adopted limited measures 

in response, such as promulgating an anti-harassment policy, it never revisited 

those measures after a string of harassment, assaults, and rapes by football players

1 The antidiscrimination rules set out in § 504 of the Rehabilitation Act, 29 U.S.C. § 794, 
and the Age Discrimination Act, 42 U.S.C. § 6101 et seq., are also often interpreted by 
analogy to Title IX.
2 Amici rely on and incorporate by reference Appellants’ Statement of Facts and the 
citations to the record therein. Amici do not independently provide citations to the record 
throughout this Brief, in part because much of this material is under seal.

2



and recruits proved them ineffective. As for the perpetrators of these assaults and 

rapes, one received a verbal reprimand. Another was ordered to run laps. Instead 

of meaningfully punishing the perpetrators, CU retaliated against the victims, 

ejecting one female student who complained of harassment from the sports 

medicine program, intimidating another into dropping charges against her football 

player assailant, and revoking the scholarship of a student-athlete who was raped 

by a football player and provided evidence to the police about the party at which 

Appellants were raped. Indeed, upon learning of the rape of Appellant Simpson, 

CU, rather than addressing the harassment, took steps to impede the criminal 

investigation and protect the perpetrators from prosecution. As a result of the 

assaults and CU’s response, both Appellants ultimately left CU.

Appellants’ evidence presents precisely the constellation of facts that renders 

a school liable for sexual harassment. CU had actual notice of a threatening 

pattern of assaults and harassment in the football program and displayed deliberate 

indifference to these incidents. This indifference caused both Appellants to 

experience sexual assault at the hands of football players and recruits, to which CU 

also responded indifferently. As a result of the assaults and CU’s response, both 

Appellants ultimately left CU. The Supreme Court has made clear that Title IX 

imposes liability when a school’s deliberate indifference to past harassment causes 

harassment of a plaintiff and when its deliberate indifference to harassment of a

3



plaintiff results in denial of educational opportunities to that plaintiff. Gebser, 524 

U.S. at 290 (Title IX provides damages remedy when school officials have actual 

knowledge of sexual harassment and respond with deliberate indifference); Davis 

v. Monroe County Bd. ofEduc., 526 U.S. 629, 634, 653-54 (1999) (student stated a 

Title IX claim when school knew she was harassed by peer, failed to meaningfully 

address that harassment, and as a result, student’s grades fell and she became so 

depressed as to threaten suicide). Both occurred here.

Although sex or race discrimination is always odious, it is particularly 

damaging in education, given the unique role schools should play in providing 

opportunities to overcome disadvantage and invidious stereotypes. Title IX and 

Title VI recognize the severe and particular harm presented by this kind of 

discrimination. The decision below undermines the equal educational opportunity 

promised by these laws. For this reason, amici respectfully urge this Court to 

reverse the errors of the district court.

ARGUMENT

I. Appellants’ Evidence Demonstrates That CU Had Actual Notice of a 
Sexually Hostile Environment in the Football Program.

A school may be liable for damages under Title IX when officials with

authority to address the discrimination have “actual notice” of sexual harassment

of students, whether committed by a teacher, a student, or another individual

4



within the school’s control. Davis, 526 U.S. at 643-44; Gebser, 524 U.S. at 290. 

Because “actual knowledge of discrimination in the recipient’s program is 

suffici en t,. . . harassment of persons other than the plaintiff may provide the 

school with the requisite notice to impose liability under Title IX.” Escue v. No. 

Oklahoma Coll., 450 F.3d 1146, 1153 (10th Cir. 2006) (emphasis in original).

Such notice is sufficient when it provides “actual knowledge of a substantial risk 

of abuse to students.” Id. at 1154 (emphasis in original) (internal quotation marks 

omitted); see also Massey v. Akron City Bd. ofEduc., 82 F. Supp. 2d 735, 744 

(N.D. Ohio 2000) (requiring awareness of “facts that indicate a likelihood of 

discrimination”). “[A]t minimum, [a school] must have possessed enough 

knowledge of the harassment that it reasonably could have responded with 

remedial measures to address the kind of harassment upon which plaintiff s legal 

claim is based.” Crandell v. New York Coll, o f Osteopathic Medicine, 87 F. Supp. 

2d 304, 320 (S.D.N.Y. 2000).

Applying the correct standard makes clear that Appellants introduced ample 

evidence from which a jury could conclude that CU had notice of a sexually hostile 

environment in the football program that posed a substantial risk of sexual assault 

to female students. In concluding otherwise, the district court erred by (1) asking 

whether each isolated incident provided CU with notice of a hostile environment, 

rather than seriously considering whether a constellation of factors of which CU

5



had notice, taken together, suggested a substantial risk to students; (2) improperly 

discounting the relevance of the many individual sexual assaults of which CU had 

notice; and (3) failing to recognize that CU officials’ notice of the sexual assault of 

Appellant Simpson itself constitutes the notice required by Title IX.

A. Notice of a hostile environment arose from notice of a
constellation of factors that, taken as a whole, demonstrated a 
substantial risk of sexual harassment and assault.

The district court misconceived the notice required by Title IX in its 

apparent conclusion that Appellants could only prove notice by demonstrating that 

CU officials knew about previous sexual assaults of CU students that were almost 

identical to the assaults of Appellants.3 The court approached the question of 

notice as one “individually focused on particular [harassers] or on particular forms 

of continuing conduct. This strict application is not appropriate, however, in a 

claim of a . . . hostile . . . environment.” West v. Philadelphia Elec. Co., 45 F.3d 

744, 756 (3d Cir. 1995) (applying Title VII). Indeed, “[t]o consider each offensive 

event in isolation would defeat the entire purpose of allowing claims based upon a 

‘hostile . . . environment’ theory, as the very meaning of ‘environment’ is ‘[t]he 

surrounding conditions, influences or forces which influence or modify.’” Jackson 

v. Quanex Corp., 191 F.3d 647, 660 (6th Cir. 1999) (quoting Black’s Law 

Dictionary 534 (6th ed. 1990)). For this reason, courts have consistently made

3 While this standard is far more demanding than required by Title IX, Appellants 
nevertheless met it, as set out in Part LB, below.

6



clear that the determi nation of whether a hostile environment exists must rest on an 

analysis of a totality of circumstances, rather than on discrete incidents. Indeed, 

this Court has noted that harassment directed at individuals other than the plaintiff 

is relevant to a Title VII hostile environment claim because “one of the critical 

inquiries in a hostile environment claim must be the environment.” Hicks v. Gates 

Rubber Co., 833 F.2d 1406, 1415 (10th Cir. 1987) (emphasis in original).

As a result, notice of a hostile environment depends on notice of “‘a 

constellation of surrounding circumstances, expectations, and relationships,’” 

Davis, 526 U.S. at 651 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 

U.S. 75, 82 (1998)), the significance of any one of which in isolation may appear 

sharply diminished, just as a determination of whether an environment constitutes 

actionable harassment depends on such a constellation of factors.4 In other words, 

notice of an environment posing a substantial risk of harassment may arise from 

many discrete facts that, taken together, suggest a threatening pattern, even if any 

of these facts alone would not provide notice of the larger risk. Thus, in Bryant v. 

Independent School District, when students bringing a Title VI claim alleged that

4 Of course, the notice inquiry differs from the question of whether a hostile environment 
is actionable as it does not focus on the plaintiffs experience, but rather on the 
defendant’s knowledge; thus, factors of which the defendant had knowledge are relevant 
to the question of notice, regardless of whether the plaintiff had such knowledge. See 
generally, e.g., Johnson v. Galen Health Inst., Inc.,261 F. Supp. 2d 679, 688 (W.D. Ky. 
2003) (stating that actual notice of discrimination does not require actual notice of the 
individual plaintiffs experiences).

7



the fights leading to their suspension arose out of a racially hostile environment, 

this Court did not ask whether school officials had notice of previous racially 

motivated fights arising in the same circumstances. Instead, this Court focused on 

school officials’ knowledge of a racially hostile environment as manifested in a 

variety of forms, including “racial slurs, graffiti inscribed in school furniture, and 

notes placed in students’ lockers and notebooks [and] Caucasian males [being] 

allowed to wear T-shirts adorned with the confederate flag, swastikas, KKK 

symbols, and hangman nooses on their person and their vehicles.” 334 F.3d at 

932; see also Tesoriero v. Syosset Central Sch. Dist., 382 F. Supp. 2d 387 

(E.D.N.Y. 2005) (finding issue of fact as to notice that teacher posed a risk of 

sexual harassment based on knowledge that teacher had given gifts to students and 

lied about it, telephoned students’ home, offered to tutor students, attended 

students’ track meets, was seen in intimate conversation with student, and wrote a 

romantic letter to that student).

The district court in this case, however, while acknowledging that the 

relevant question was whether “a constellation of relevant events . . . provides 

sufficient notice of the broad risk of sexual harassment and assault,” 372 F. Supp. 

2d at 1241, failed to apply that standard. Instead, the court considered each event 

of which CU had notice separately, asking whether each incident when so isolated 

independently provided notice of a substantial risk for purposes of Title IX. Id. at



1237-42. Based on this analysis, the court inappropriately disregarded not only 

notice of repeated incidents of violence against women by football players and 

coaches; notice of heavy alcohol consumption and some drug use in football 

recruiting by unsupervised, underage players and recruits; apparent notice of use of 

strippers and prostitutes in football recruiting; and more broadly, notice that 

players were expected to provide recruits with access to alcohol and sex as part of 

their recruitment efforts to “show recruits a good time,” but also notice of multiple 

previous sexual assaults by football players and recruits over the space of only four 

years (discussed in further detail below). This included notice of a 1997 rape at a 

football recruiting party in circumstances remarkably similar to the assaults of 

Appellants, which led to a meeting at which the District Attorney specifically 

warned CU officials of an ongoing risk to female students from football recruiting 

practices, and notice of previous assaults carried out by Appellants ’ attackers.

The court moreover disregarded the fact that this pattern of harassment and assault 

did not occur broadly across the university community in unconnected settings, but 

was narrowly focused within the football program. Taken together, this 

constellation of facts provides clear notice of a sexually hostile environment that 

posed a substantial risk to female students. In focusing on each specific incident 

and ignoring the larger pattern, the district court missed the forest for the trees.

9



This Court’s recent decision in Gonzales v. Martinez, 403 F.3d 1179 (10th 

Cir. 2005), provides a helpful analog. That Eighth Amendment case, brought by 

an inmate who was sexually assaulted by an employee in a county jail, considered 

whether the sheriff had actual knowledge of a substantial risk of harm to inmates 

and had been deliberately indifferent to that risk—a standard remarkably similar to 

Title IX’s harassment standard, as many courts have noted. E.g., Vance v. Spencer 

County Pub. Sch. Dist., 231 F.3d 253, 260 (6th Cir. 2000); Rosa H. v. San Elizario 

Ind. Sch. Dist., 106 F.3d 648, 658-59 (5th Cir. 1997). This Court reversed 

summary judgment to defendants, finding that plaintiff had raised an issue of fact 

as to knowledge of a substantial risk of sexual assault when she showed the sheriff 

had notice that: (1) an inmate was beaten up by other inmates who had been 

drinking and no one responded to the inmate’s screams; (2) inmates had been seen 

unsupervised in the jail control room; (3) an identified prison employee (not 

plaintiff s assailant) had exposed himself to female inmates and sexually taunted 

them; (4) general complaints had been made about sex- and drug-related activities 

at the jail; (5) an identified prison employee (not plaintiffs assailant) had been 

arrested after harassing female dancers at a strip club; and (6) an identified prison 

employee (not plaintiffs assailant) had been accused of punching a male inmate. 

403 F.3d at 1183-85. This Court concluded that notice of security lapses, sexual 

harassment, and physical assaults by various prison employees would permit a jury

10



to find actual notice of a substantial risk to the plaintiff and those in her situation. 

Id. at 1187. Just as a constellation of facts demonstrating lax discipline, substance 

abuse, sexual harassment by other prison employees, and physical assaults by these 

employees raised a triable issue as to notice of a substantial risk in Gonzales, here 

too a remarkably similar constellation of facts localized within the CU football 

program should have gone to the jury on the question of notice.

B. Previous sexual assaults in the football program provided notice 
of a substantial risk to female students.

Even if the appropriate inquiry were whether C U had actual notice of past 

sexual assaults by football players and recruits indicating a substantial risk of 

future assaults—a far narrower inquiry than the legal standard set out by the 

relevant case law, described above—Appellants still put forth ample evidence to 

go to the jury on the question of notice. In discounting CU’s notice of multiple 

sexual assaults in the narrow context of the football program, the district court 

committed several legal errors.

1. Identity between the circumstances o f prior assaults and the 
assaults o f Appellants is not required.

The district court improperly dismissed the significance of several previous 

incidents of sexual harassment and assault in the football program of which CU 

had notice based on minor differences in details between those incidents and the 

assaults of Appellants. For instance, in January 1998, CU officials learned that

11



football recruits had sexually assaulted a teenage girl at a recruiting party on 

December 6, 1997. The district court noted that the victim of this assault was a 

high school student, rather than a CU student, and concluded that CU thus could 

not be liable to the victim under Title IX. The court stated that as a result, “this 

incident did not, per se, provide notice of the broader risk alleged by the plaintiffs, 

nor did it provide the kind of clear notice of a specific risk required by Title IX.” 

372 F. Supp.2d at 1238. Similarly, the district court dismissed evidence that in 

2000, officials received notice that Katharine Hnida, a player on the football team, 

had been sexually harassed and assaulted by other players,5 reasoning, “The 

harassment of Katharine Hnida involved player on player harassment by football 

players in an athletic milieu that is essentially sui generis.”6 372 F. Supp.2d at 

1240. The district court also disregarded evidence that in October 2001, CU’s 

football coach learned that “Trainer A,” a female student trainer in the football

5 Despite the summary judgment obligation to view the evidence of Appellants, the non­
moving party, in the most favorable light, the district court concluded that these 
allegations of sexual harassment encompassed only verbal harassment. 372 F. Supp. 2d 
at 1239. As set out in Appellants’ Brief, the allegations also comprised physical 
harassment.
6 That Ms. Hnida chose to join the football team does not somehow lessen the relevance 
of CU’s notice of her harassment. Just as there is no “inhospitable environment” 
exception to Title VII’s nondiscrimination mandate, Conner v. Shrader-Bridgeport 
Intern. Inc., 227 F.3d 179, 194 (4th Cir. 2000), and “no assumption-of-risk defense to 
charges of workplace discrimination,” Smith v. Sheahan, 189 F.3d 529, 535 (7th Cir. 
1999), neither is there such an exception from Title IX’s protections. The abuse that Ms. 
Hnida experienced at the hands of football players, of which CU was aware, did not 
become something other than sexual harassment and assault because she was herself a 
football player.

12



program, had been sexually assaulted by a particular football player, concluding 

that this incident, and indeed all assaults in which assailants were identified, 

provided notice only that “the particular player involved in [the] incident presented 

a risk of sexual assault” rather than notice of a broader risk. 372 F. Supp. 2d at 

1240, 1241. “In combination,” the court concluded, notice of all these incidents 

did no more than indicate “that some players, and some recruits, had engaged in 

sexual harassment and sexual assault.” Id.

This analysis distorts Title IX’s requirement of notice of a substantial risk.

As many courts have recognized, a jury may conclude that school officials had 

such notice based on previous incidents of abuse and harassment, even if those 

incidents differ in their particulars from the abuse and harassment alleged by 

plaintiffs and regardless of whether previous incidents would themselves have 

violated Title IX. Thus, notice of a substantial risk to female students may arise 

from notice of harassment and assaults of individuals other than female students, or 

from notice of harassment and assaults of female students whose situation differed 

in various respects from that of a particular plaintiffs. For instance, a school may 

be on notice that student athletes present a risk of sexually assaulting students 

based on an athlete’s sexual assault of employees at another school. Williams v.

Bd. o f Regents o f the Univ. System o f Georgia, 441 F.3d 1287, 1298 (11th Cir 

2006). A school district may have actual notice that an elementary school teacher

13



poses a risk to elementary students based on allegations of his previous sexual 

harassment of middle school students and a nineteen-year-old co-worker. Doe v. 

Warren Consol. Sch., 307 F. Supp. 2d 860, 864-66, 891 (E.D. Mich. 2003).

Should the district court’s conclusion that rape of a high school student does not 

provide notice of a similar risk to a CU student be affirmed, an elementary school 

could assert, for instance, that it did not have notice that a teacher posed a 

substantial risk to female students even when school officials knew the teacher had 

abused girls who were not his students. Should the court’s conclusion that 

harassment and assault of a female football player did not provide notice of a 

similar risk to other female students be affirmed, a school could assert that notice 

that a teacher was racially harassing African-American athletes whom he coached 

did not provide notice that the teacher might racially harass African-American 

students in his class. This is not the law.

Moreover, a student alleging a violation of Title IX “need not show that the 

district knew that a particular [individual] would abuse a particular student.” Rosa 

H., 106 F.3d at 659; see also Escue, 450 F.3d at 1153. In other words, notice of a 

risk need not be abuser-specific. In the Eighth Amendment context, where as 

under Title IX, liability turns on actual knowledge of a substantial risk, the 

Supreme Court has explained that an official may not escape liability “by showing 

that, while he was aware of an obvious, substantial risk to inmate safety, he did not

14



know that the complainant was especially likely to be assaulted by the specific 

prisoner who eventually committed the assault.” Farmer v. Brennan, 511 U.S.

825, 843 (1994). In considering notice of risk, “it does not matter whether the risk 

comes from a single source or multiple sources, any more than it matters whether a 

prisoner faces an excessive risk of attack for reasons personal to him or because all 

prisoners in his situation face such a risk.” Id.; see also Gonzales, 403 F.3d at 

1182-85, 1187 (female inmate sexually assaulted by prison employee could go to 

jury with Eighth Amendment claim when sheriff had notice of previous sexual 

harassment and assault of other inmates by other prison employees). Under Title 

IX as well, the appropriate inquiry is whether school officials had notice of a 

substantial risk of sexual harassment and assault to persons in Appellants’ 

situation, not whether officials had notice of a particular risk of harm to Appellants 

from Appellants’ particular assailants. Thus, contrary to the district court’s 

suggestion, that the multiple previous assaults of which CU had notice were by 

“identified players,” 372 F. Supp. 2d at 1241, does not somehow insulate CU from 

notice of the broader pattern of harassment in the football program revealed by 

these incidents. As in Gonzales, notice of previous assaul ts and harassment by 

identified individuals provided notice of a broader hostile environment posing a 

substantial risk to women. See Escue, 450 F.3d at 1153 (notice of discrimination 

in recipient’s programs sufficient under Title IX).

15



Taken together, the previous assaults of which CU had notice clearly permit 

a jury to conclude that CU knew female students faced a substantial risk of sexual 

assault and harassment by football players and recruits. The contrary rule crafted 

by the district court suggests that regardless of how many football players and 

recruits sexually assault young women, Title IX imposes no obligations on CU to 

address the problem unless officials previously received notice that a CU student 

has been assaulted in almost identical circumstances either by an unidentified 

player or by the particular player or recruit accused in an individual case. If 

applied in the context of Title VI, it suggests that a school is insulated from 

liability for racial harassment no matter how many students are repeatedly 

threatened with nooses and vile racial epithets in a particular department, if the 

previous incidents of harassment occurred under slightly different circumstances 

than the plaintiffs or were undertaken by identified individuals other than the 

plaintiffs harasser. This rule fundamentally misconceives the balance struck in 

Davis and Gebser, which recognize that when school officials have notice of any 

set of facts indicating a hostile environment, the school has an obligation to act. It 

should be rejected by this Court.

2. Notice to a CU law enforcement officer is relevant notice under 
Title IX.

In October 2001, “CC,” a CU student, reported to CU police that she had 

been sexually assaulted by a football player—one of the individuals who would

16



weeks later assault Ms. Simpson. The district court failed to address this incident, 

perhaps because it concluded that notice to CU police officers does not constitute 

notice to CU.

Gebser makes clear that Title IX’s notice requirement is fulfilled when a 

school official “who at a minimum has authority to institute corrective measures on 

the [school’s] behalf’ has actual knowledge of harassment. 524 U.S. at 277. As 

law enforcement officers, CU police had the power to institute corrective measures 

on CU’s behalf that would have prevented future harassment by the assailant, 

including his assault of Appellants—namely, the power of criminal investigation 

and arrest. Moreover, such action would have begun to remedy the larger hostile 

environment by instituting accountability for sexual assault in the football 

program. This Court and others have described reports to law enforcement as one 

corrective measure school officials can institute to address harassment rising to the 

level of criminal assault and comply with civil rights law. E.g., Murrell v. Sch.

Dist. No. 1, 186 F.3d 1238, 1244 (10th Cir. 1999); Vance, 231 F.3d at 262. It 

necessarily follows that those law enforcement officers who are themselves school 

officials have authority to institute corrective measures to address criminal 

harassment.

17



3. Allegations need not be proven or corroborated to constitute 
notice under Title IX.

“Trainer B,” a female student trainer in the football program, was raped by 

players and recruits at a football recruiting party in November 2001—-just two 

weeks before the assault of Appellants—by some of the same players who 

assaulted Appellants, in circumstances remarkably similar to Appellants’ assault. 

The district court nevertheless concluded that this did not provide notice to CU of 

the relevant risk because although officials may have heard rumors about the 

assault of Trainer B, those rumors were not confirmed.

Rampant gossip in the athletic department that something bad had happened 

to Trainer B involving sexual contact with football players at this event were 

sufficient to “alert [officials in the football program] to the possibility” that players 

and recruits had been involved in some form of sexual misconduct. Gebser, 524 

U.S. at 291. Such uncorroborated allegations can constitute actual notice for 

purposes of Title IX. E.g., Doe v. Sch. Admin. Dist. No. 19, 66 F. Supp. 2d 57, 60, 

63 (D. Me. 1999) (denying summary judgment for school district on issue of notice 

when school principal had heard rumors that teacher was having a sexual 

relationship with high school student); see generally Doe A. v. Green, 298 F. Supp. 

2d 1025, 1034 (D. Nev. 2004) (“While the complaints may be unsubstantiated by 

corroborating evidence and denied by the allegedly offending [individual], whether 

such complaints put the school district on notice of a substantial risk to students . . .

18



is usually a question for the jury.”) (internal quotation marks omitted). Evidence 

of widespread discussion within the athletic department of improper sexual 

behavior by Appellants’ attackers in circumstances remarkably similar to 

Appellants’ assault should have gone to the jury as circumstantial evidence of 

notice to athletic department officials. See Gant v. Wallingford Bd. ofEduc., 195 

F.3d 134, 141 (2d Cir. 1999) (“Of course, a showing that the defendant ‘should 

have known’ can, in some circumstances, create an inference—-at least sufficient to 

raise a genuine issue—that the defendant did know.”) (emphasis in original); cf. 

Gonzales, 403 F.3d at 1183 (“[Kjnowledge of a substantial risk is a question of 

fact subject to demonstration in the usual ways, including inference from 

circumstantial evidence.”) (emphasis in original).

C. Undisputed notice of the assault of Appellant Simpson satisfies 
Title IX’s notice requirement.

Appellant Simpson reported the December 7, 2001, assault by players and 

recruits to CU officials immediately after it occurred. CU thus indisputably had 

the actual notice of sexual harassment required by Title IX. See, e.g., Escue, 450 

F.3d at 1154-55 (noting plaintiffs allegations of harassment to school official 

constitutes “actual notice”); Williams, 441 F.3d at 1298 (notice of rape of student 

by football players constituted notice of harassment). As set out in Part II, below, 

CU’s deliberately indifferent reaction to Simpson’s own assault after receiving this 

notice denied her educational opportunities and thus violated Title IX.

19



In summary, the district court’s holding that CU did not have notice of a 

sexually hostile environment in the football program, if left to stand, “would 

permit school administrators to sit idly, or intentionally, by while horrible acts of 

discrimination occurred on their grounds by and to students in their charge.” 

Bryant, 334 F.3d at 933. Such a holding is inconsistent with the core purposes of 

Title IX and Title VI, as well as the law of this Circuit and the United States 

Supreme Court.

II. Appellants’ Evidence Establishes that CU Was Deliberately 
Indifferent to the Existence of a Sexually Hostile Educational 
Environment.

Supreme Court precedent makes clear that a school is “deliberately 

indifferent” to a hostile educational environment where its “response to [] 

harassment or lack thereof is clearly unreasonable in light of the known 

circumstances.” Davis, 526 U.S. at 648. As articulated by this Court, “when 

administrators who have a duty to provide a nondiscriminatory educational 

environment for their charges are made aware of egregious forms of intentional 

discrimination and make the intentional choice to sit by and do nothing, they can 

be held liable.” Biyant, 334 F.3d at 933. Even where a school “did not necessarily 

create the hostile environment,” it will be deemed deliberately indifferent when it 

“facilitated the hostile environment or, in the least, permitted it to continue.” Id.

20



The district court’s analysis of the deliberate indifference prong of the 

hostile environment claim departed from established law in two disturbing ways. 

First, the district court erroneously concluded that a school insulates itself from 

liability by adopting minimalist remedial measures even when the school becomes 

aware that such measures are ineffective. This cannot be squared with legal 

precedent. Second, the district court erred in refusing to consider evidence of CU’s 

response to Appellants’ December 2001 assaults. Its legal conclusion that a 

school’s response to an incident of assault, i.e., post-incident conduct, should not 

be considered in determining deliberate indifference contravenes Supreme Court 

and lower court precedent. Even without the considerable evidence of CU’s 

indifference prior to December 2001, CU’s efforts to impede the criminal 

investigation of the December 2001 assaults and to protect Appellants’ assailants 

exemplifies precisely the deliberate indifference that exposes a school to Title IX 

liability, because this indifference drove Appellants from CU, thus further denying 

them equal educational opportunities on the basis of sex.

A. CU’s response to harassment in the football program prior to 
December 2001 constituted deliberate indifference.

The district court erred in finding that CU was not deliberately indifferent to 

sexual harassment in the football program prior to December 2001 based 

exclusively on the minimal remedial measures that CU said it adopted from 1997 

to 1999. In drawing this conclusion, the court ignored evidence that CU knew

21



female students continued to be victimized by a spate of harassment, assaults, and 

rapes in the football program after the last of the remedial measures was adopted 

and before the December 2001 rapes occurred, yet did nothing further to protect its 

students. According to the district court, the utter ineffectiveness of a school’s 

remedial measures is irrelevant to the deliberate indifference inquiry, even when 

the school knows that the measures have failed.

In determining whether a school’s response to harassment amounts to 

deliberate indifference, courts across the nation examine (among other factors) the 

effectiveness of remedial measures in curbing the harassment. These courts reach 

the unremarkable conclusion that a school cannot rely on superficial remedies to 

shield itself from a deliberate indifference finding, particularly when it learns that 

those remedies are inadequate yet takes no further action. In Vance v. Spencer 

County Public School District, the Sixth Circuit explained the rationale for this 

position. In that case, the defendant school was on notice of repeated sexual 

assaults on campus. In response, it promulgated a sexual harassment policy and 

provided presentations on sexual harassment. Additionally, school officials 

confronted the students accused of assaulting plaintiff. Nonetheless, because these 

measures failed to end the assaults, and because the school knew the remedies 

were ineffective yet refused to take further steps, the Sixth Circuit concluded that 

the school was deliberately indifferent to the harassment. It explained,

22



[WJhere a school district has knowledge that its remedial action is 
inadequate and ineffective, it is required to take reasonable action in light of 
those circumstances to eliminate the behavior. Where a school district has 
actual knowledge that its efforts to remediate are ineffective, and it 
continues to use those same methods to no avail, such district has failed to 
act reasonably in light of the known circumstances.

231 F.3d at 261; accord Wills v. Brown Univ., 184 F,3d 20, 26 (1st Cir. 1999)

(“[I]f [the institution] learns that its [corrective] measures have proved inadequate,

it may be required to take further steps to avoid new liability.”); Jones v. Indiana

Area Sch. Dist., 397 F. Supp.2d 628 (W.D. Pa. 2005) (rejecting defendant’s motion

for summary judgment where school learned efforts to remedy harassment were

ineffective in stopping a pattern of harassment); Canty v. Old Rochester Reg 7 Sch.

Dist., 66 F. Supp.2d 114, 116-17 (D. Mass. 1999) (same).

This Court approvingly cited this rule in Escue, a Title IX case involving a

female student who was sexually harassed by her professor. 450 F.3d at 1155. In

concluding that the university was not deliberately indifferent, this Court explicitly

relied upon the fact that the university “had no ‘knowledge that its remedial action

[was] inadequate and ineffective.’” Id. at 1155-56 (alteration in original) (citing

Vance, 231 F.3d at 261). It then approvingly discussed Tlieno v. Tonganoxie

Unified School District No. 464, 377 F. Supp.2d 952, 965 (D. Kan. 2005), which

denied summary judgment to a school district in a peer-on-peer harassment case.

Although the school district in Theno had implemented remedial measures to

address a pattern of harassment, summary judgment was inappropriate because a

23



jury “certainly could conclude” that inaction in the face of the known 

ineffectiveness of these measures constituted deliberate indifference. Escue, 450 

F.3d at 1156. Thus, this Court already has endorsed the uncontroversial position, 

uniformly espoused by sister circuits and lower courts, that a school is deliberately 

indifferent to a hostile environment even if it has adopted reasonable anti­

harassment measures, when the school learns that the measures fail to remedy the 

hostile environment yet takes no further action.

Applying that rule to Appellants’ evidence leads to the inescapable 

conclusion that CU exhibited deliberate indifference to the sexual harassment, 

assaults, and rapes that continued unabated even after its 1997-1999 reforms were 

implemented. Even assuming that the remedial measures CU adopted from 1997 

to 1999— i.e., recommending a one-semester and one-game suspension for one 

player among several involved in the rape of a high school student, and developing 

recruiting guidelines, a sexual harassment protocol and an anti-harassment 

policy—constituted reasonable attempts to end harassment in the football program 

when adopted, after CU learned that the sexual harassment continued unabated 

despite adoption of the reforms, Title IX imposed an obligation to do more.

Football officials knew of the continued use of alcohol, drugs, and sex to recruit 

players, but opposed eliminating these practices for fear of losing a “competitive 

edge” in attracting star athletes. In 2000, CU learned that its anti-harassment

24



policies failed to protect the sole female player on the team, Katherine Hnida, who 

was sexually harassed on multiple occasions by football players. CU knew that its 

anti-harassment policies failed to protect another student trainer, Trainer A, who 

was raped by a football player in September 2001. It then learned that its policies 

failed to prevent the October 2001 sexual assault of CC, a CU student and football­

recruiting ambassador, by one of the football players who would assault Appellants 

two months later. Then, in November 2001, after Trainer B was sexually assaulted 

by multiple football players and recruits during a recruiting event, CU learned of 

rumors of something bad that happened to Trainer B involving sexual contact with 

multiple players at the event.

And how did CU respond to these revelations? It did not revisit the 

effectiveness of the 1997-1999 remedial measures. It did not ensure enforcement 

of its anti-harassment policies and protocol. It did not conduct any investigation 

into these incidents. It did not punish the players involved in any meaningful way. 

CU’s most aggressive measures upon discovering the ineffectiveness of its anti­

harassment policies consisted of making one offending player run laps and verbally 

reprimanding another. Otherwise, CU responded by covering up the allegations, 

summoning Trainer A into the football coach’s office and intimidating her from 

bringing criminal charges against the player, and retaliating against Ms. Hnida by 

preventing her from staying on the team and interfering with her attempt to transfer

25



to another football program. CU’s own internal commission concluded that the 

football program had adopted a policy of “plausible deniability” with respect to the 

risks posed by recruiting practices.7 Time and again officials in the football 

program rejected pleas for substantive reforms, prioritizing the “competitive edge” 

that sex and alcohol offered in recmiting star athletes, over the rights of female 

students to be free from sexual assaults and protected against rapes. It simply 

cannot be said that CU acted reasonably in concluding that the superficial 

measures adopted from 1997 through 1999 were sufficient to address the hostile 

environment in the football program, when CU knew that those measures failed to 

protect students against the ongoing pattern of sexual harassment, assaults, and 

rapes in that program.

B. CU’s response to the December 7, 2001, assaults was deliberately 
indifferent.

Appellants’ evidence as to CU’s conduct in response to the December 2001 

assaults, standing alone, was sufficient to go to the jury on the question of whether 

CU was deliberately indifferent to a sexually hostile educational environment, even 

absent consideration of CU’s previous tolerance of harassment and assaults in the 

football program. The district court’s categorical refusal to consider CU’s conduct 

after the December 7, 2001, assaults on Appellants—including CU’s efforts to

7 Independent Investigative Commission, Final Report to the University o f Colorado 
Board o f Regents 13 (May 14, 2004).

26



impede the criminal investigation—constitutes an unprecedented and unwarranted 

departure from established civil rights law.

Specifically, the district court’s conclusion that “evidence that the University 

exhibited deliberate indifference after the key discriminatory event at issue does 

not tend to show that the University’s deliberate indifference caused the severe 

sexual harassment suffered by the plaintiffs,” 372 F. Supp.2d at 1245, too narrowly 

constmes the harm against which Title IX protects. Title IX does not merely 

address incidents of sexual harassment per se. Rather, Title IX more broadly 

protects against the denial of educational opportunities on the basis of sex. When a 

school attempts to cover up a student’s rape and refuses to investigate the incident 

or punish the perpetrators, and when this deliberate indifference to the rape leads 

the victim to withdraw from the school, the school has in effect excluded a student 

from an educational opportunity on the basis of her sex, even if it did not cause the 

discrete incident of the rape itself.

For this reason, courts consistently examine a defendant’s response to 

harassment of a plaintiff to determine whether a defendant has been deliberately 

indifferent. The law in this Circuit could not be clearer on this point. In Murrell, 

this Court explicitly relied on a school’s response after plaintiff was sexually 

assaulted to conclude that the school was deliberately indifferent to the existence 

of a sexually hostile environment and that this deliberate indifference deprived

27



plaintiff of educational opportunities in violation of Title IX. 186 F,3d at 1244, 

1247-49. In that case, a female plaintiff experienced a series of assaults by a male 

classmate. After the assaults ended, school administrators acted rudely to plaintiff 

and her mother, suggested the sexual contact to which plaintiff was subject might 

have been consensual, and then suspended the plaintiff but not her assailant. As a 

result, plaintiff left the school. In the view of this Court, this post-harassment 

behavior established deliberate indifference that deprived the plaintiff of 

educational benefits in violation of Title IX. Id. at 1249. Similarly, in the more 

recent case of Escue, this Court examined a university’s response after the 

harassment occurred to determine whether the university had evinced deliberate 

indifference that denied the plaintiff educational opportunities. 450 F.3d at 1155 

(relying on university’s decision to transfer the plaintiff out of the class taught by 

the harasser, confront the harasser, and terminate the harasser to conclude that the 

school’s post-incident conduct did not constitute deliberate indifference). This 

Court’s consistent conclusion that post-incident conduct is crucial in determining 

whether a school has been deliberately indifferent is entirely consistent with 

Supreme Court precedent, see Gebser, 524 U.S. at 291 (relying in part on school’s 

post-incident decision to terminate a sexual harasser to conclude that the school 

was not deliberately indifferent), as well as case law from sister circuit courts, 

Williams, 441 F.3d at 1299-1300 (relying in part on “sluggish” pace of defendant’s

28



response to sexual assault of plaintiff to affirm finding of deliberate indifference); 

Gant, 195 F.3d at 143 (stating that deliberate indifference could be found on the 

basis of a teacher’s response to a complaint of name-calling made after an incident 

of racial harassment occurred). The district court’s categorical refusal to consider 

CU’s response to Appellants’ December 2001 rapes represents a clear departure 

from established civil rights law.

When CU’s response to the December 2001 assaults and rapes is considered, 

it becomes even more evident that CU was deliberately indifferent. CU did not 

punish any of the football players involved for the assaults or rapes; in fact, all of 

them played in the Fiesta Bowl game only four weeks later. Even after the players 

pled guilty to criminal charges, CU arranged for at least one of them to work off 

his community service hours in the CU weight room. CU’s football coach never 

met with at least one of the players to discuss the rapes or expressed any concern 

about the incident. Even after CU police reported that evidence against one of the 

recruits was “overwhelming,” CU’s football program continued to recruit him.

Indeed, far from undertaking reasonable efforts to investigate or remedy a 

hostile environment, CU actually took steps to impede the criminal investigation of 

the assaults. Football players were instructed to withhold evidence from the 

police. Coaches and players met with a friendly officer to review their accounts 

for consistency before meeting with investigating officers. Athletic officials

29



retaliated against a student-athlete who was also raped that evening and who 

provided evidence to the prosecution by revoking her soccer scholarship and 

banning her from athletic facilities. As a result of CU’s reaction and the hostility 

it demonstrated, both Appellants ultimately left CU and thus were denied 

educational opportunities. CU’s conduct constitutes a quintessential example of 

the deliberate indifference against which Title IX and its analogs protect. In 

Murrell, when this Court was confronted with a virtually identical situation 

wherein school officials “not only refused to remedy [] harassment but actively 

participated in concealing it,” this Court had no difficulty in concluding that such 

conduct “quite plainly amounts to deliberate indifference.” 186 F.3d at 1248; see 

also Ericson v. Syracuse Univ., 35 F. Supp.2d 326, 328 (S.D.N.Y. 1999). The 

district court’s blind eye toward CU’s malfeasance that served to deny Appellants 

educational opportunities cannot be squared with the protections afforded by civil 

rights laws.

CONCLUSION

For these reasons, amici urge this Court to reverse the grant of summary 

judgment for Defendants and remand for further proceedings.

30



STATEMENT REGARDING ORAL ARGUMENT

Counsel for amici request permission to participate in oral argument because 

this case raises issues of exceptional legal importance regarding the interpretation 

of Title IX and analogous civil rights statutes, and amici wish to present to the 

Court their analysis of these statutes, including the relevance of Appellants’ notice 

of and deliberate indifference to the assaults of Appellees.

Dated: August 24, 2006 Respectfully submitted,

Lenora M. Lapidus
Emily J. Martin 
Dennis Parker 
Catherine Kim
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor
New York, NY 10004
(p) (212) 549-2615
(f) (212) 549-2580

Counsel for Amici Curiae

31



APPENDIX A
Statements of Interest of Am id

The American Civil Liberties Union (“ACLU”) is a nationwide, nonprofit, 

nonpartisan organization of more than 600,000 members, dedicated to preserving 

the principles of liberty and equality embodied in the Constitution and this nation’s 

civil rights laws. Through its Women’s Rights Project (founded in 1972 by Ruth 

Bader Ginsburg) and its Racial Justice Program, the ACLU has long sought 

to ensure that the law provides individuals with meaningful protection from 

harassment and other forms of discrimination on the basis of gender or race. In 

particul ar, the ACLU has battled the invidious effects of discrimination in 

education, including sexual harassment, given that the proper role of education is 

to provide opportunities to overcome disadvantage and stereotypes; discrimination 

that serves to undermine this vital role and close down opportunity is especially 

pernicious. The American Civil Liberties Union Foundation of Colorado (“ACLU 

of Colorado”) is the Colorado state affiliate of the ACLU. The proper resoluti on of 

this case is a matter of substantial interest to the ACLU and its members.

The Asian American Legal Defense and Education Fund (“AALDEF”), 

founded in 1974, is a non-profit organization based in New York City. AALDEF 

defends the civil rights of Asian Americans nationwi de through the prosecution of

I



lawsuits, legal advocacy and dissemination of public information. A key focus of 

AALDEF's educational equity project is the growing problem of anti-Asian 

harassment in public schools and universities.

The California Women's Law Center (“CWLC”) is a private, nonprofit 

public interest law center specializing in the civil rights of women and girls. The 

California Women's Law Center, established in 1989, works in the following 

priority areas: Sex Discrimination, Women’s Health, Race and Gender, Women’s 

Economic Security, Exploitation of Women, and Violence Against Women. Since 

its inception, CWLC has placed a strong emphasis on eradicating sex 

discrimination and sexual harassment in schools. CWLC has authored numerous 

amicus briefs, articles, and legal education materials on this issue. The Simpson v. 

University o f Colorado case raises questions within the expertise and concern of 

the California Women's Law Center. Therefore, the California Women's Law 

Center has the requisite interest and expertise to join in the amicus brief in the 

Simpson case.

The Connecticut Women's Education and Legal Fund (“CWEALF”) is a 

non-profit women’s rights organization dedicated to empowering women, girls and 

their families to achieve equal opportunities in their personal and professional

II



lives. CWEALF defends the rights of individuals in the courts, educational 

institutions, workplaces and in their private lives. Since its founding in 1973, 

CWEALF has provided legal information and conducted public policy and 

advocacy to ensure the spirit of Title IX is implemented and enforced in 

educational and employment opportunities.

The Lawyers’ Committee for Civil Rights Under Law (“Lawyers’ 

Committee”) is a non-profit, nonpartisan organization founded in 1963 at the 

request of President John F. Kennedy to involve the private bar in providing legal 

services to address racial discrimination. The principal mission of the Lawyers’ 

Committee is to secure, through the rule of law, equal justice for all Americans. Its 

Board of Trustees includes several past Presidents of the American Bar 

Association, past Attorneys General of the United States, law school deans and 

professors, and many of the nation’s leading lawyers. Through the Lawyers’ 

Committee and its independent local affiliates, hundreds of attorneys have 

represented thousands of clients in discrimination cases across the country. The 

Lawyers’ Committee has been continually involved in cases before the Supreme 

Court involving the proper scope and coverage afforded to federal civil rights laws 

prohibiting discrimination. Through the Leadership Conference for Civil Rights, 

the Lawyers’ Committee recently filed an amicus brief in the Title IX case Jackson

III



v, Birmingham Board o f Education, 544 U.S. 167 (2005). The Lawyers'

Committee has also filed amicus briefs in recent sexual harassment cases including 

Suders v. Pennsylvania State Police, 542 U.S. 129 (2004) and Faragher v. City o f  

Boca Raton, 524 U.S. 775 (1998).

Legal Momentum advances the rights of women and girls by using the power of 

the law and creating innovative public policy. It is the nation's oldest legal 

advocacy organization devoted to women's rights. Legal Momentum, then known 

as NOW Legal Defense, pioneered the implementation of Title IX with PEER, its 

nationwide Project on Equal Education Rights, from 1974-1992. It was co-counsel 

in Doe v. Petaluma City School District, 949 F. Supp. 1415 (N.D. Cal. 1996), the 

first case to recognize that a school's failure to respond to peer sexual harassment 

may violate Title IX, and has appeared as amicus curiae in numerous cases 

concerning the right to be free from sexual harassment and sex discrimination in 

education, including Jackson v. Birmingham Board o f Education, 544 U.S. 167 

(2005), Davis v. Monroe County Board o f Education, 526 U.S. 629 (1999), and 

Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992).

The Mexican American Legal Defense and Educational Fund (“MALDEF”), 

a national nonprofit Latino civil rights organization, has as its primary objective

IV



the protection and promotion of the civil rights of Latinos living in the United 

States. Founded in 1968, MALDEF seeks to empower the Latino community to 

participate fully in American society through impact litigation, advocacy, research, 

community outreach, leadership development, and education. MALDEF’s core 

program areas include education, immigrants’ rights, employment discrimination, 

and political access. MALDEF has litigated and appeared as amicus curiae in 

numerous cases involving the right to be free of discrimination, harassment, and a 

hostile environment.

Founded in 1996, the National Asian Pacific American Women’s Forum 

(“NAPAWF”) is dedicated to forging a grassroots progressive movement for social 

and economic justice and the political empowerment of Asian Pacific American 

women and girls. NAPAWF supports the plaintiffs in Simpson v. University o f  

Colorado. Ending violence against women, including sexual assault and 

harassment, is one of the central issues that forms the basis of NAPAWF’s 

advocacy. Over the past few years, reports of sexual harassment, stalking, and 

assault against Asian Pacific Islander (“API”) women on college campuses have 

steadily increased. This increase stems primarily from race and sex discrimination 

against API women and the failure of university administrators to quickly and 

adequately respond to these situations. The Supreme Court has recognized that

V



federally funded educational institutions deny women and minorities equal 

educational opportunity in violation of Title IX and Title VI not only when schools 

themselves discriminate, but also when they knowingly ignore discrimination by 

third parties. A narrow interpretation of the notice and deliberate indifference 

requirements required under law would ultimately eviscerate the protections of 

Title IX and Title VI, leaving many API women without the ability to seek judicial 

redress.

The National Association for the Advancement of Colored People 

(“NAACP” or the “Association”), established in 1909, is the nation’s oldest civil 

rights organization. The principal objectives of the Association are to ensure the 

political, educational, social, and economic equality of rights and eliminate race 

prejudice among the citizens of the United States; to remove barriers of racial 

discrimination through democratic processes; to seek enactment and enforcement 

of federal, state and local laws securing civil rights; to inform the public of the 

adverse effects of racial discrimination and to seek its elimination; to educate 

persons as to their constitutional rights and to take all lawful action to secure the 

exercise thereof, and to take other lawful action in furtherance of these objectives.

VI



The NAACP Legal Defense and Educational Fund, Inc. (“LDF”) is a non­

profit corporation formed to assist African-Americans in securing their legal rights. 

It is the nation's oldest civil rights law firm, having been founded as an arm of the 

NAACP in 1939 by Charles Hamilton Houston and Thurgood Marshall. The LDF 

was chartered by the Appellate Division of the Supreme Court of New York in 

1940 as a non-profit legal aid society "to render legal aid gratuitously to such 

Negroes as may appear to be worthy thereof, who are suffering legal injustices by 

reason of race or color and are unabl e to employ and engage legal aid and 

assistance on account of poverty." Since 1957, LDF has operated independently of 

the NAACP. LDF has been described by the Supreme Court of the United States 

as a "'firm '. . . which has a corporate reputation for expertness in presenting and 

arguing the difficult questions of law that frequently arise in civil rights litigation," 

NAACP v. Button, 371 U.S. 415, 422 (1963). LDF has long been concerned with 

effective enforcement of the nation's civil rights laws, including Title VI of the 

1964 Civil Rights Act, 42 U.S.C. § 2000d, see, e.g., Adams v. Richardson, 480 

F.2d 1159 (D.C. Cir. 1973) (en banc), affg  351 F. Supp. 636 (D.D.C. 1972), case 

later dismissed on other grounds sub nom. WEAL v. Cavazos, 906 F.2d 742 (D.C. 

Cir. 1990), and similar statutes patterned on Title VI, which are construed in pari 

materia with it, such as Title IX. LDF's interest in the matter at bar arises from its 

concern that the cramped interpretation of the evidence necessary to establish a

VII



sexually hostile environment adopted by the court below would be equally 

applicable to Title VI and other civil rights laws, and would virtually result in 

judicial nullification of the broad purposes of these laws as well as work flagrant 

injustices upon the victims of the stereotypical and discriminatory conduct to 

which they are subjected.

Founded in 1971, the National Partnership for Women and Families is a 

national advocacy organization that develops and promotes public policies to help 

women achieve equal opportunity, quality health care, and economic security for 

themselves and their families. The National Partnership has a longstanding 

commitment to equal opportunity for women and to monitoring the enforcement of 

antidiscrimination laws. The National Partnership has devoted significant 

resources to combating sex and race discrimination in education and has filed 

numerous briefs amicus curiae in the federal circuit courts of appeal to advance 

women’s opportunities in education.

The Northwest Women's Law Center (NWLC) is a regional non-profit 

public interest organization that works to advance the legal rights of all women 

through litigation, legislation, education, and the provision of legal information and 

referral services. Since its founding in 1978, NWLC has been involved in both

VIII



litigation and legislation aimed at ending all forms of discrimination against 

women. As part of that effort, NWLC has been dedicated to protecting and 

ensuring women’s rights to equality in education and athletics. Toward that tend, 

NWLC has participated as counsel and as amicus curiae in cases throughout the 

Northwest and the country. NWLC believes it is imperative that courts preserve 

the protections afforded to women and girls by Title IX.

The Sargent Shriver National Center on Poverty Law (“Shriver Center”) 

champions economic opportunity through fair laws and policies so that people can 

move out of poverty permanently. Our methods blend advocacy, communi cation, 

and strategic leadership on issues affecting people living in poverty. National in 

scope, the Shriver Center’s work extends from the Beltway to state capitals and 

into communities building strategic alliances. Through its Women’s Law and 

Policy Project, the Shriver Center works on issues related to education, including 

sexual harassment and other forms of violence against women and girls. Access to 

safe and quality education is the surest path out of poverty and toward economic 

well-being. The Shriver Center has a strong interest in the eradication of 

discrimination in education on the basis of sex or race, which denies women and 

minorities equal educational opportunities.

IX



The Southwest Women’s Law Center is a nonprofit public interest 

organization based in Albuquerque, New Mexico. Its mission is to create the 

opportunity for women to realize their full economic and personal potential by: (i) 

eliminating gender bias, discrimination and harassment; (ii) lifting women and 

their famil ies out of poverty; and (iii) ensuring that women have full control over 

their reproductive lives through access to comprehensive reproductive health 

services and information.

The Women’s Law Project (“WLP”) is a non-profit public interest law firm 

with offices in Philadelphia and Pittsburgh, Pennsylvania. Founded in 1974, the 

WLP works to abolish discrimination and injustice and to advance the legal and 

economic status of women and their families through litigation, public policy 

development, public education and individual counseling. The WLP is committed 

to ending sexual abuse and harassment of women and children and to safeguarding 

the legal rights of women and children who experience sexual abuse. Toward that 

end, the WLP is interested in insuring that the law provides comprehensive 

remedies for students who are subject to sexual abuse and harassment.

X



C E R T I F I C A T E  O F  D I G I T A L  S U B M I S S I O N S

I, Lenora M. Lapidus, hereby certify that on August 24, 2006,1 
provided a digital copy of the foregoing Amici Curiae Brief in Support of 
Appellants to the Clerk for the Tenth Circuit Court of Appeals via electronic 
mail and further certify that:

(1) all required privacy redactions have been made and, with the 
exception of those redactions, every document submitted in digital 
form is an exact copy of the written document filed with the Clerk; 
and

(2) the digital submission has been scanned for viruses with the most 
recent version of a commercial virus scanning program (Symantec 
Antivirus) and according to the program is free of viruses.

Dated: August 24, 2006
Lenora M. Lapidus
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor 
New York, NY 10004



C E R T I F I C A T E  O F  S E R V I C E

I, Emily J. Martin, hereby certify that on August 24, 2006, a copy of 
the foregoing Amici Curiae Brief in Support of Appelants was served by 
U.S. Mail and electronic mail to counsel of record as follows:

Baine P. Kerr 
Kimberly M. Hult 
Christopher W. Ford 
Hutchinson Black and Cook, LLC 
921 Walnut St., Ste. 200 
Boulder, CO 80302 
Hult@hbcboulder. com

Honorable Patricia M. Wald 
2101 Connecticut Ave., NW 
Washington, DC 20006

Pamela S. Karlan 
Stanford Law School 
559 Nathan Abbott Way 
Stanford, CA 94305-8610

Jocelyn Samuels 
Dina R. Lassow 
Neena K. Chaudhry 
Ellen Eardley
National Women’s Law Center 
11 Dupont Circle, NW, Ste. 800 
Washington, DC 20036 
nchaudhry @nwl c. org

Seth J. Benezra 
John A. Culver 
Benezra & Culver, LLC 
141 Union Blvd., Ste. 260 
Lakewood, CO 80228-1838 
sjbenezra@bc-law.com 
jaculver@bc-law.com

mailto:sjbenezra@bc-law.com
mailto:jaculver@bc-law.com


Peggy R. Jessel 
Peggy Jessel, LLC 
4150 Darley Ave., Ste. 7 
Boulder, CO 80305-6537 
peggy@pjawlle.com

Larry S. Pozner
Daniel M. Reilly
Reilly Pozner & Connelly, LLP
511 16th St., Ste. 700
Denver, CO 80202
lpozner@litigationcolorado.com
dreilly @litigationcolorado. com

Kay J. Rice 
Cooper & Clough PC 
1512 Larimer St., #600 
Denver, CO 80202 
kiice@cooper-clough.com

Patrick O’Rourke
David Temple
University Counsel
1380 Lawrence St., Ste. 1325
Denver, CO 80204
david.temple@cudenver.edu

Dated: August 24, 2006

mailto:peggy@pjawlle.com
mailto:lpozner@litigationcolorado.com
mailto:kiice@cooper-clough.com
mailto:david.temple@cudenver.edu